Who Watches the Watchmen: Vigilant Doorkeeping, the Alien Tort Statute, and Possible Reform

Loyola Marymount University and Loyola Law School Digital Commons at Loyola Marymount University and Loyola Law School Loyola of Los Angeles International and Comparative Law Review Law Reviews 3-1-2009 Who Watches the Watchmen: Vigilant Doorkeeping, the Alien Tort Statute, and Possible Reform Keith A. Petty Recommended Citation Keith A. Petty, Who Watches the Watchmen: Vigilant Doorkeeping, the Alien Tort Statute, and Possible Reform, 31 Loy. L.A. Int'l & Comp. L. Rev. 183 (2009). Available at: http://digitalcommons.lmu.edu/ilr/vol31/iss2/2 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.

Who Watches the Watchmen? "Vigilant Doorkeeping," the Alien Tort Statute, and Possible Reform KEITH A. PETTY* I. INTRODUCTION The Alien Tort Statute allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. The scope of the Alien Tort Statute (ATS) is potentially limitless. Under the statute, litigants may include aliens located within the United States, foreign officials, multi-national corporations, and even U.S. government officials. The potential scope of actionable claims is no less broad, depending on federal court interpretation of customary international law (CIL). Underlying these cases is a debate in the academy as to whether the ATS is a valuable tool to combat human rights violations, or an impediment to the role of the political branches in foreign relations.' LL.M. Georgetown University Law Center; J.D. Case Western Reserve University, School of Law; B.A. Indiana University. Currently serving in the U.S. Army Judge Advocate General's Corps as a prosecutor in the Office of Military Commissions, the first U.S. war crimes tribunal since WWII. Previously served for one year in Baghdad, Iraq as a Brigade Judge Advocate, advising combatant commanders on the laws of war and local Iraqi leaders on rule of law initiatives. Formerly the Adjunct Assistant Professor of the War Crimes Prosecution Lab, Case Western Reserve University, School of Law. In addition, worked in the Trial Chambers of the International Criminal Tribunal for the Former Yugoslavia. Special thanks to Professors Robert Dalton, David Stewart, and Greg McNeal for their helpful comments and suggestions. Thanks also to Lee Garrity for her skillful editing. 1. For exemplary articles underlying this debate and the role of CIL in U.S. jurisprudence, see, e.g.,.ralph G. Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 VAND. L. REv. 2241 (2004); Beth Stephens, Upsetting Checks and Balances: The Bush Administration's Efforts to Limit Human Rights Litigation, 17 HARV. HUM. RTS. J. 169 (2004) (arguing that the executive's opposition to ATS claims is not entitled to judicial deference); Lea Brilmayer, Federalism, State Authority, and the Preemptive Power

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 The U.S. Supreme Court in Sosa v. Alvarez-Machain warned that claims filed under the ATS continue to be subject to "vigilant doorkeeping. ' ' 2 In spite of this warning, the courts do not seem interested in playing the role of watchmen, nor well-equipped to juggle the competing interests at stake in ATS litigation. The struggle between plaintiffs seeking to broaden the scope of the ATS, and defendants' attempts-often supported by the executive branch-to limit actionable claims, is unlikely to be resolved by the judiciary. ATS cases have yet to establish a coherent. jurisprudence.' Who, then, watches the watchmen? Or, in other words, who will give the courts guidance? In several cases, the judicial branch has called out for assistance from the political branches.' When ATS litigation touches on foreign policy concerns, e.g., suits against foreign heads of state, input from the executive branch may be solicited.' In other cases, less connected to foreign affairs, however, the executive may offer guidance that is not followed. 6 A of International Law, 1994 SuP. Cr. REV. 295, 295, 303-04, 332 n.109 (1995) (arguing the preemptive power of international law); Harold Hongju Koh, Commentary, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1841-1860 (1998); Anne- Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT'L L. 461 (1989); Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555 (1984). See also Curtis A. Bradley et al., Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 870-71 (2007) [hereinafter Bradley et al., Customary International Law]; David H. Moore, An Emerging Uniformity for International Law, 75 GEO. WASH. L. REV. 1, 44-45 (2006); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665 (1986); A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT'L L. 1 (1995); Julian Ku & John Yoo, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 SuP. Cr. REV. 153 (2004) (arguing that the courts are not as well equipped as the executive to achieve the purpose of the ATS). 2. Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004). 3. John B. Bellinger, III, U.S. State Dept. Legal Advisor, The 2008 Jonathan I. Charney Lecture in International Law at Vanderbilt Law School: Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches (Apr. 11, 2008), available at http://law.vanderbilt.edu/article-search/article-detail/download.aspx? id=2587. 4. Sosa, 542 U.S. at 731 ("welcom[ing] any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations"). See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286 (2001) ("Like substantive federal law itself, private rights of action to enforce federal law must be created in Congress."). See also Bellinger, supra note 3. 5. See Bellinger, supra note 3. 6. For a discussion of deference to the executive in ATS cases based on specific and foreseeable harm to U.S. foreign policy interests, see Margarita S. Clarens, Deference,

2009] Who Watches the Watchmen? coherent framework for ATS claims is needed, and it must come from the legislature. Congress is best suited to clarify the scope of actionable claims under the ATS through its constitutional authority to "define and punish... Offences against the Law of Nations." 7 This article outlines the legal underpinnings of ATS actions and the need for reform. Part II discusses the history of ATS litigation and the difficulties inherent in limiting causes of action rooted in CIL. The four primary subjects of ATS litigation, from Filartiga to the present, are discussed in detail in Part III. Whether reform to the ATS is necessary is discussed in Part IV, which outlines several mechanisms of judicial deference and recognizes that, in spite of these safeguards, reform is in fact necessary. This article concludes by recommending that the Alien Tort Statute be amended to mirror the CIL violations specified in the Third Restatement of Foreign Relations Law, and to permit input from the executive in cases that are likely to impact American foreign relations. II. HISTORY OF THE ATS AND THE APPLICATION OF CUSTOMARY INTERNATIONAL LAW A. Alien Tort Statute Litigation from 1789-2004 The Alien Tort Statute first appeared as a clause in the Judiciary Act of 1789.8 In its most current form, the ATS provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 9 While the origins of the ATS remain unclear, the historical context implies that the Statute's "principal motivation was to provide redress for offenses committed by U.S. persons against foreign officials in the United States." Human Rights and The Federal Courts: The Role of the Executive in Alien Tort Statute Litigation, 17 DUKE J. COMP. & INT'L L. 415 (2007). 7. U.S. CONST. art. I, 8, cl. 10. 8. Judiciary Act of 1789, ch. 20, 1 Stat. 73 (codified at 28 U.S.C. 1332) (2000) (providing "the district courts shall have... cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States."). 9. Alien Tort Statute, 28 U.S.C. 1350 (2000). 10. Bellinger, supra note 3. This view is consistent with concerns of the founders prior to drafting the Constitution. At that time, redress for foreigners in state courts for violations against the law of nations was both inconsistent and uncertain. Such

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 The ATS remained largely dormant for almost two centuries, " until the case of Filartiga v. Pena-Irala in 1980. 2 The plaintiffs in that case were relatives of a Paraguayan national who successfully sued a Paraguayan police official responsible for the kidnapping, torture, and death of their son. 3 While human rights advocates rightfully celebrated this decision as a clear victory, 1 questions remained as to whether the ATS was merely jurisdictional, or whether it provided an independent cause of action for human rights violations. The jurisdictional issue for the Second Circuit was clear. The ATS did not create new rights for aliens, but opened up "the federal courts [to] adjudication of the rights already recognized by international law."'" According to one commentator, "[t]he court in Filartiga did not hold.., that either CIL itself or the ATS created the plaintiffs' cause of action." 6 The strictly jurisdictional nature of the ATS is further supported by its placement in the Judiciary Act, which established the jurisdiction and structure of federal courts." Nevertheless, during the twenty-four years inconsistencies would clearly have significant foreign policy implications for the fledgling union. Id. See also Sosa, 542 U.S. at 714-16 (citing Respublica v. De Longchamps, 1 U.S. 111 (0. T. Phila. 1784)). In addition, the Sosa court quotes the writings of James Madison: "[t]he Continental Congress was hamstrung by its inability to 'cause infractions of treaties, or of the law of nations to be punished."' JAMES MADISON, JOURNAL OF THE CONSTITUTIONAL CONVENTION 60 (E. Scott ed', 1893). Sosa, 542 U.S. at 716. 11. Very few cases pre-fildrtiga utilized the ATS. The ATS was invoked only twentyone times from 1789 and 1980. See Kenneth C. Randall, Further Inquiries into The Alien Tort Statute and a Recommendation, 18 N.Y.U. J. INT'L L. & POL. 473, 474-751, n.8 (1986). Fewer still allowed the case to go forward on ATS claims. See Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961); Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795) (No. 1,607). See also O'Reilly De Camara v. Brooke, 209 U.S. 45, 52 (1908) (denying ATS claim against the State for expropriation of a personal monopoly right but indicating defendant may be personally liable); Claflin v. Houseman, 93 U.S. 130, 134 (1876) (finding ATS jurisdiction concurrent with state jurisdiction in dicta); Atkins v. The Fibre Disintegrating Co., 85 U.S. 272, 299-300 (1874) (concerning federal jurisdiction for an attachment in an admiralty case, but only addressing the issue in dicta). See generally Eric Engle, The Alien Tort Statute and the Torture Victims' Protection Act: Jurisdictional Foundations and Piocedural Obstacles, 14 WILLAMETTE J. INT'L L. & DISPUTE RES. 1, 6 n.29 (2006). 12. Filirtiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980). 13. Id. at 878-79. 14. See, e.g., Center for Constitutional Rights, http:l/ccrjustice.org/ourcases/pastcases/filartiga-v:-pen-irala (description of Fi.i6rtiga). 15. Fildrtiga, 630 F.2d at 887. 16. Bradley et al., Customary International Law, supra note 1, at 888. 17. Id. at 887. There is little legislative history to explain the origins of the ATS and how it fits into the Judiciary Act. For a detailed analysis of the history of the ATS, see Thomas H. Lee, The Safe Conduct Theory of the Alien Tort Statute, 106 COLUM. L. REV.

2009] Who Watches the Watchmen? 187 following Filartiga, the debate over whether the ATS merely provided federal courts with jurisdiction or created independent causes of action would remain. In the 1980s, most of the ATS suits resembled those in Filartiga: foreign nationals suing their own government. 18 The litigation expanded, however, in the 1990s to include suits by private actors against multi-national corporations. 19 Specifically, those corporations accused of aiding and abetting foreign States in committing alleged human rights abuses. 2 ' During the post- Filartiga era, many courts held that the ATS was both jurisdictional and substantive in nature. 21 In fact, the lower courts uniformly held that no additional statutory cause of action was required to bring a claim under the ATS. 2 The dilemma between jurisdiction and substance was due in part to the Filartiga Court, which left the door open for ATS claims based on violations of the "law of nations." ' The scope of the law of nations can be interpreted.rather broadly, as discussed in greater detail below. In fact, Filartiga refuted the argument" 830 (2006) (arguing that only "safe conducts" violations were actionable under the ATS in 1789). 18. Bellinger, supra note 3, at 5-6. 19. See, e.g., Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 163 (5th Cir. 1999). 20. Bellinger, supra note 3, at 6. 21. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); In re Estate of Marcos (In re Marcos 1), Human Rights Litig., 25 F.3d 1467,1475 (9th Cir. 1994). 22. See, e.g., Papa v. United States, 281 F.3d 1004, 1012-13 (9th Cir. 2002); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 103-06 (2d Cir. 2000); Beanal, 197 F.3d at 165; Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996); Kadic, 70 F.3d at 241; Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996); In re Estate of Marcos (In re Marcos I), Human Rights Litig., 978 F.2d 493, 503 (9th Cir. 1992); In re Marcos 1, 25 F.3d at 1475-76; Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 320 (S.D.N.Y. 2003); Estate of Rodriguez v. Drummond Co., 256 F. Supp. 2d 1250, 1258 (N.D. Ala, 2003); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 441-43 (D.N.J. 1999); Jama v. INS, 22 F. Supp. 2d 353, 362-63 (D.N.f. 1998); Doe v. Islamic Salvation Front, 993 F. Supp. 3, 7 (D.D.C. 1998); Xuncax v. Gramajo, 886 F. Supp. 162, 179 (D. Mass. 1995); Paul v. Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993); Forti v. Suarez-Manson, 694 F. Supp. 707, 709 (N.D. Cal. 1988). See also Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (S.D. Ga. 2002) (another case that completed trial). See generally Steinhardt, supra note 1, at 2244-45. 23. In this article, the phrase "law of nations" is used interchangeably with "Customary International Law," that is, international norms that develop from sufficient State practice, when States act out of a sense of legal obligation to do so. The "law of nations," however, is a term of art unique to the U.S. constitutional legal system. See U.S. CONST. art. I, 8, cl. 10 ("The Congress shall have Power... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations"). 24. Fildrtiga, 630 F.2d at 886.

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 that the law of nations may only be designated by Congress under the "Define and Punish" clause.2 Courts in subsequent cases were. left with the daunting task of identifying which law of nations norms were embodied in the federal common law, and, therefore, actionable under the ATS. 26 It was not until 2004, twenty-four years after the Filartiga decision, that the Supreme Court set limits to ATS claims in Sosa v. Alvarez-Machain. 27 B. The Alien Tort Statute after Sosa v. Alvarez-Machain: The Era of Uncertainty In the seminal decision of Sosa v. Alvarez-Machain, the Supreme Court affirmed the jurisdictional nature of the ATS, but left several key issues unresolved. 28 On jurisdiction, the Court provided, "In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject." 29 The Court added, however, that historically "federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time." 30 Therefore, according to the Court, the ATS was purely jurisdictional, but allowed the courts to entertain causes of action under federal common law. The next challenge, as highlighted by the Court, is defining actionable claims under the ATS-the "scope" of ATS causes of action. The Sosa Court provided some guidance by stating, "[W]e think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the 25. U.S. CONST. art. I, 8, cl. 10. 26. Historically, applying international law to federal causes of action has not been problematic. Numerous cases apply rules of international law that are not law codified by Congress. See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796) ("When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement."); The Paquete Habana, 175 U.S. 677 (1900); Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398 (1964); The Nereide, 9 Cranch 388, 13 U.S. 388, 423 (U.S.N.Y.) (1815) (stating U.S. courts are "bound by the law of nations, which is a part of the law of the land"); United States v. Smith, 18 U.S. 153, 158-60 (1820); THE FEDERALIST No. 3, at 22 (John Jay) (Bourne ed., 1901). 27. See generally Sosa, 542 U.S. 692. 28. Id. 29. Id. at 714. 30. Id.

2009] Who Watches the Watchmen? features of the 18th-century paradigms we have recognized." 31 The eighteenth century paradigms recognized by the Court include norms against the "violation of safe conducts, infringement of the rights of ambassadors, and piracy." 32 The Court recognized, in addition to the three norms governing State conduct, the overlapping protective norms which are "rules binding individuals for the benefit of other individuals." 33 This reading of applicable. international law is embraced by a human rights approach to ATS litigation, which will be discussed in greater detail below. Even based on Sosa's guidance, however, the scope of ATS claims remains an ill-defined battleground for litigants. The sources of law used to define actionable violations of the. law of nations are similarly problematic. The drafters of the ATS did not help matters by leaving few signs of legislative intent. ", The Constitution puts the historical law of nations in context in the "Define and Punish" clause, which provides: "The Congress shall have Power... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." 3 " In light of this provision, Congress in 1789 may have been targeting piracy, as well as other norms of the law merchant through the ATS. 36 The three wrongs recognized in Sosa rely on similar historical sources, but the question remains, which legal pronouncements legitimately define the modern law of nations? C. The Scope of Actionable ATS Claims After Sosa, the door to actionable claims under the ATS was kept ajar. subject to vigilant doorkeeping by the federal courts. 37 But just how far open is this door and which claims should be permitted to enter? The answers to these questions lay at the heart of unraveling the modern ATS puzzle. To begin, the plain language of the ATS grants jurisdiction over violations of the law 31. Id. at 725. 32. Id. at 724 (citing 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 68 (1769)). 33. Id. at 715. 34. Id. at 724 (stating that "we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone's three primary offenses"). 35. U.S. CONST. art. I, 8, cl. 10. 36. Engle, supra note 11, at 6 n.25-26 (citing Al Odah v. United States, 321 F.3d 1134, 1148 (D.C. Cir. 2003) (for prize jurisdiction)). 37. Sosa, 542 U.S. at 729.

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 of nations. 38 Therefore, one must undertake an analysis that determines: (1) What potential- actions fall within customary international law and (2) which of these norms are as "accepted by the civilized world and defined with a specificity comparable" to how safe conducts, rights of ambassadors, and piracy were in 1789.39 According to generally accepted definitions, customary international law "results from a general and consistent practice of states followed by them from a sense of legal obligation." ' The question then becomes, how do we determine which CIL principles are as fully recognized as those that were actionable in 1789? " The Supreme Court alluded to this issue in United States v. Smith. 4 2 In discussing the interpretation of a statute prohibiting piracy, the Court noted, "[o]ffences, too, against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognized by the common consent of nations," suggesting the common law must be relied upon to define some understood, but unenumerated, offenses. 4 3 The application of CIL in U.S. courts triggers a visceral response in some. According to the "revisionists," CIL has the status of federal common law only when there is authorization to treat it as such under the Constitution, a statute, a treaty, or an executive proclamation." This reasoning follows from the post- Erie interpretation that federal common law, to the extent it still 38. 28 U.S.C. 1350. 39. Sosa, 542 U.S. at 725. 40. RESTATEMENT (THIRD).OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 102(2) (1987). See also Statute of the International Court of Justice art. 38(1)(b), 59 Stat. 1055, 1060 (1945) (stating that international custom is a source of law that can be applied by the international Court of Justice "as evidence of a general practice accepted as law"). The ICJ recognizes "the general principles of law recognized by civilized nations" as a source of law. Id. at art. 38(1)(c). It could be argued that certain general principles, which may not have ripened into customary law, support ATS claims. That discussion, however, is beyond the scope of this article. 41. Sosa, 542 U.S. at 725, 737-38. See also Bradley et al., Customary International Law, supra note 1, at 897 n.146 (arguing that the CIL claims available under the ATS are much more limited than CIL in the general international law sense. ATS CIL violations are a "subset of all CIL violations."). 42. Smith, 18 U.S. at 153. 43. Id. at 159. 44. See Weisburd, supra note 1; Trimble, supra note 1. See generally Bradley et al., Customary International Law, supra note 1, at 870-71.

2009] Who Watches the Watchmen? exists, must be grounded in actual federal law. 5 The Supreme Court notes that "[like substantive federal law itself, private rights of action to enforce federal law must be created in Congress." ' In fact, some cases suggest the Court "has also adopted a restrictive approach in recent years to the judicial recognition of private rights of action under federal statutes and the Constitution."" The "modernists" take a different approach, arguing that CIL has the status of self-executing federal common law and is to be applied without implementing legislation. ' This argument appeals to the universal nature of the law of nations, which many suggest should be interpreted by States in a similar fashion, rather than through the bifurcated process of implementing domestic legislation. Under this paradigm, a broader interpretation of CIL is warranted. In fact, at least one commentator argues that the development of CIL has accelerated as a result of State participation in multilateral intergovernmental organizations and the proliferation of non-governmental organizations. Under this view, rather than limit actionable ATS claims, they should be expanded. This interpretation, however, runs afoul of the very heart of the Sosa decision. As stated by the Court, "We have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity."" Environmental torts are an example of a failed attempt to create a 45. See also Bradley et al., Customary International Law, supra note 1, at 878 (citing Nw. Airlines, Inc. v. Transp. Workers Union, 451 U.S. 77, 95 (1981) for the proposition that "the federal lawmaking power is vested in the legislative, not the judicial branch of government"); Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). See generally Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Banco Nacional De Cuba, 376 U.S. 398. 46. Alexander, 532 U.S. at 286. 47. Bradley et al., Customary International Law, supra note 1, at 881. See also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-74 (2001); Medellin v. Texas, 128 S. Ct. 1346, 1357 n.3 (2008) (for a case limiting private rights of action under a treaty without express language to the contrary). 48. Bradley et al., Customary International Law, supra note 1, at 870-71 (citing Henkin, supra note 1, at 1561); Kadic, 70 F.3d at 246; In re Marcos H, 978 F.2d at 502; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S. 111 cmt. d, 115 cmt. e; Brilmayer, supra note 1, at 295, 303-04, 332 n.109; Koh, supra note 1, at 1846-47. 49. Steinhardt, supra note 1, at 2265 n.108. 50. Sosa, 542 U.S. at 728 (rejecting national constitutions and part of the Restatement as sources of defining arbitrary detention as a CIL violation actionable under ATS).

192 Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 new violation of the law of nations in the courts. 1 The Second Circuit denied jurisdiction over an environmental claim brought under the ATS, noting "environmental torts are* unlikely to be found to violate the law of nations." 2 Without congressional action, others will continue to claim new and creative law of nation violations under the ATS. 3 The different interpretations as to the scope of CIL remain contentious. Verifying which of these norms have been established with the same certainty as the eighteenth century law of nations violations is more difficult still. Nevertheless, one may certainly use federal common law as a gap-filler, particularly when the applicable CIL norm under an ATS claim cannot be found in a federal statute or treaty. As the next section discusses, defining CIL norms absent legislation becomes nearly impossible as long as the "modernist" and "revisionist" views on applicable sources of law remain irreconcilable." D. Sources Providing Evidence of Customary International Law The sources of law relied upon as evidence of CIL norms represents a continual struggle. In determining causes of action for violations of international law, it seems that a broad survey of foreign and international law sources would effectively indicate the State practice. This issue, however, remains particularly divisive in the courts and the academy. 51. Engle, supra note 11, at 12-15. 52. Ajuindo v. Texaco, 303 F.3d 470, 476 (2d Cir. 2002). See also Bano v. Union Carbide, 273 F.3d 120, 122 (2d Cir. 2001); Beanal, 197 F.3d at 166-67; Jota v. Texaco, 157 F.3d 153, 155-57 (2d Cir. 1998). 53. Other areas of interest which have arguably risen to the level of CIL include the prohibition on trafficking in persons as well as standards set out in the Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 61st Sess., Supp. No. 49, U.N. Doc. A144/49 (Sept. 2, 1990), which to date has 193 State Parties, with the noticeable absence of the United States (signed but not ratified) and Somalia. See Office of the United Nations High Commissioner for Human Rights, http://treaties.un.org/pages/viewdetails.aspx? src=treaty&mtdsgno=iv-11&chapter=4&lang=en. 54. International humanitarian law best highlights the conflict over defining CIL norms with any degree of specificity. In 2005, the International Committee of the Red Cross concluded a study aimed at enumerating CIL norms in armed conflict.. See generally JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, INT'L COMM. FOR THE RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005). The U.S. response best reflects the contentiousness of this study. See also John B. Bellinger III & William J. Haynes II, A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law, 89 INT'L REV. RED CROSS 443, 444 (2007) [hereinafter Bellinger & Haynes, US Response].

2009] Who Watches the Watchmen? The Filartiga Court relied on a wide range of sources to determine the CIL claim at issue." Seeking evidence that torture existed as a law of nations violation comparable to those recognized in 1789, the Court utilized State pronouncements 6, the United Nations Charter, 7 the Universal Declaration of Human Rights," treaties not yet ratified by the United States, 5 9 and foreign constitutions. Later, courts relied less on State pronouncements and consensus, and gave greater weight to actual State practice.'o Sosa suggested a more stringent test in applying CIL than the lower courts. 61 Defining accepted norms by the civilized world to the same degree as violations of safe conduct, infringement of the rights of ambassadors, and piracy in 1789,62 the Court refocused on the practice of States and gave little validity to other international sources. Specifically, the Court gave little weight to the Universal Declaration of Human Rights (UDHR) 63 and the International Covenant on Civil and Political Rights (ICCPR), 6 which, although ratified, never became self-executing nor enforceable in U.S. courts. 65 The Court also rejected national constitutions (consensus prohibiting arbitrary detention is a norm, but highly general),' an International Court of Justice case (different international norms and detention was more severe and longer), 7 and federal case law 55. Fildrtiga, 630 F.2d at 881-84. 56. Id. at 884. 57. Id. at 881. 58. Id. at 882. 59. Id. at 883-84. 60. Bradley et al., Customary International Law, supra note 1, at 890 (citing Flores v. Southern Peru Copper Corp., 414 F.3d 233, 250 (2d Cir. 2003)); United States v. Yousef, 327 F.3d 56, 103 n.37 (2d Cir. 2003) (favoring "formal lawmaking and official actions of States" over scholarly opinions as proper bases for determining states' practices). See also J. Patrick Kelly, The Twilight of Customary International Law, 40 VA. J. INT'L. L. 449, 470 (2000). 61. See, e.g., Sosa, 542 U.S. at 724-25. See also Bradley et al., Customary International Law, supra note 1, at 900 n.169 (citing In re Marcos 1, 25 F.3d at 795 and Presbyterian Church of Sudan, 244 F. Supp. 2d at 305 as examples of pre-sosa lower court decisions mistakenly relying on the Restatement as a source of CIL violations actionable under the ATS). 62. Sosa, 542 U.S. at 736. 63. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948). 64. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. 65. 138 CONG. REC. S4781-01, art. III(1); Sosa, 542 U.S. at 735. 66. Sosa, 542 U.S. at 737 n.27. 67. Id.

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 (more assertive view expressed on federal judicial discretion on CIL claims than the Supreme Court takes).' One of the more profound statements issued by the Court referenced the ICCPR, which the United States has ratified. The Court noted that there existed an implication that."the presence of a norm in the ICCPR no longer provides significant evidence of a CIL cause of action in ATS cases." 69 The invasive nature of applying international and foreign sources used in constitutional interpretation concerns some scholars. But should we not, contrary to these concerns, welcome a new era of "judicial globalization," as suggested by others? 0 The truth lies somewhere between these opposing views. In order to remain a leader in guiding the development of international legal norms, the United States would benefit from an interpretation of the law of nations that took the practice of' other nations into account. For example, the principles enshrined in the UDHR-a document co-authored by Eleanor Roosevelt-have undoubtedly become part of customary international law." 1 In fact, several Supreme Court cases cite the UDHR as a measure to judge other norms. " Similarly, the Sosa decision short-changed the ICCPR. Not only has the United States ratified the ICCPR, many consider it the embodiment of several important customary international human rights standards. Recall that providing consistent federal remedies for law of nations violations served as the founders' primary foreign relations concern and was the rationale behind the ATS in 1789.' 3 Utilizing sources recognized by the global community as reflecting customary international law norms would follow that intent.. 68. Id. 69. Bradley et al., Customary International Law, supra note 1, at 899 (citing Aldana v. Del Monte Fresh.Produce, N.A., Inc., 416 F.3d 1242, 1247 (11th Cir. 2005) (disapproving pre-sosa district court decisions that had relied on the ICCPR)). 70. MARTIN S. FLAHERTY, SEPARATION OF POWERS IN A GLOBAL CONTEXT, IN JUDGES, TRANSITION, AND HUMAN RIGHTS 12 (John Morrison et al. eds., 2007) (citing Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. 66 (2004)). 71. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16 (June 21). See also John Humphrey, The International Bill of Rights: Scope and Implementation, 17 WM. & MARY. L. REV. 527, 529 (1976). 72. Dandridge v. Williams, 397 U.S. 471, 520 n.14 (1970); Zemel v. Rusk, 381 U.S. 1, 15 n.13 (1965); Kennedy v. Mendoza-Martinez, 371 U.S. 554, 554, 564 n.16 (1963). 73. See supra Part II.A. and text accompanying note 10.

2009] Who Watches the Watchmen? The "modernists" have welcomed the Supreme Court's reliance on international legal sources in recent years.74 Nonetheless, the "judicial globalization" honeymoon may be short-lived in light of cases such as Medellin. 75 This debate is a direct reflection of the inability to resolve the scope of CIL norms actionable under the ATS, and the sources of law used to prove the viability of these norms in ATS cases. Notwithstanding the academic discussion, the courts experience the locus of the struggle. The resort to an ill-defined body of law, 76 drawing from debatable sources, does not bode well for consistent jurisprudence. Claimants deserve to know with more certainty when they have a legitimate cause of action, and prospective defendants need to know how to amend their behavior in order to avoid violating the proscribed actions under the ATS. Well-defined legislation will, in large part, preclude the above debate as to which torts remain actionable, and which sources of law apply. The legislation will be the courts' guidance. Iii. CURRENT SUBJECTS OF ATS LITIGATION The subject areas currently being litigated under the ATS fall into four primary categories. First, there are the traditional Filartiga-like cases in which the law of nations violator/torturer is found within the territorial United States. Second, there are claims against foreign governments, challenging their internal policies as they relate to their own citizens. The third, and most active field in ATS litigation, is the corporate aiding and abetting liability cases. Finally, a new area of litigation that will likely grow in coming years relates to U.S. officials being sued for actions taken in the context of the so-called War on Terror. Each of these areas raises 74. See Steinhardt, supra note 1, at 2259; Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, 67 LAw & CONTEMP. PROBS. 169, 173 (2004). See also Leila Nadya Sadat, An American Vision for Global Justice: Taking the Rule of (International) Law Seriously, 4 WASH. U. GLOBAL STUD. L.R. 329, 342 (2005). See generally Harold Hongju Koh, The Ninth Annual John W. Hager Distinguished Lecture, The 2004 Term: The Supreme Court Meets International Law (Oct. 28, 2004), in 12 TULSA J. COMP. & INT'L. L. 1, 12 (2004). 75. Medellin v. Texas, 128 S. Ct. 1346, 1357 n.3 (2008). The significance of the Medellin decision cannot be overlooked. This Court, in particular, seems unlikely to extend private rights of action for ill-defined CIL violations without implementing legislation of those norms. 76. See, e.g., the debate over CIL as applied in the international humanitarian law context in the ICRC CIL Report and the U.S. State Department Reply. See ICRC STUDY, supra note 54; Bellinger & Haynes, US Response, supra note 54.

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 considerable issues-in its own right absent guiding legislation from Congress. A. When Human Rights Violators Are in the United States The Filartiga case was the first, and best, example of a foreign official found in the United States who could be served with an ATS claim by another foreign national." This type of claim, while seemingly in line with U.S. human rights objectives," raises concerns over whether the United States intended for the ATS to be used between two foreign parties, particularly when the conduct in question has little to no connection to the United States. While certain policy considerations should be taken into account, the law clearly allows for these actions. The Court held that Congress has the authority, under the "arising under" clause, to confer jurisdiction on U.S. courts for claims brought by foreign plaintiffs against foreign defendants. 79 Proponents of these actions argue that Congress.not only recognized this form of extraterritorial extension of human rights claims, but "approved and expanded -the court's ruling in Filartiga. '0 Supporting this argument is the enactment of the Torture Victims Protection Act (TVPA). 8 ' To be clear, "[t]he TVPA creates a cause of action against one who commits torture or extrajudicial killing and was intended to codify judicial decisions recognizing such a cause of action under the Alien Tort Claims Act." 2 There is no doubt in the case of foreign officials who subject an individual to torture or extrajudicial killing, 3 that the TVPA - over the ATS - now controls the field. ' According to the legislative history, but not the language of the TVPA, the statute also applies to "anyone with higher 77. See generally Fildrtiga, 630 F.2d. 876 78. Memorandum for the United States, Filrtiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090), reprinted in19 I.L.M. 585,604 (1980). 79. Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480, 480-81 (1983) (cited in the TVPA Majority Senate Report, S. REP. No. 102-249, at 5 (1991)). 80. Engle, supra note 11, at 17 (citing Kadic, 70 F.3d at 243). 81. Torture Victims Protection Act, Pub. L. No. 102-256, 2, 106 Stat. 73 (1992) [hereinafter TVPA]. 82. Hilao v. Estate of Marcos, 103 F.3d 767, 778 (9th Cir. 1996) (citing 28 U.S.C. 1350; S. REP. No. 102-249, at 3-5 (1991)); H.R. REP. No. 102-367, at 3-4 (1991)). 83. TVPA, 2. 84. Enahoro v. Abubakar, 408 F.3d 877,884 (7th Cir. 2005).

2009] Who Watches the Watchmen? authority who authorized, tolerated or knowingly ignored those acts." 5 Subsequent cases have applied the same standard and even extended a "command responsibility" theory of liability usually reserved for war crimes.' In Hilao v. Estate of Marcos, the Ninth Circuit relied on a post-wwii military tribunal case referenced in the Senate report, ' as well as the Statute of the, International Criminal Tribunal for the former Yugoslavia to develop its tortbased command responsibility theory. Although it is well established in the United States that civil actions for conduct underlying criminal offenses are allowed, juxtaposing theories of liability from the criminal side to the civil is at times problematic. In this instance, the courts come dangerously close to confounding the laws of war, as utilized in war crimes prosecutions, with civil liability for acts occurring in the absence of an armed conflict. While "the goal of international law regarding the treatment of noncombatants in wartime... is similar to the goal of international human rights law," ' we should not overextend the similarities between this aspiration and the goals of the ATS. In contrast to the codification and congressional intent behind the TVPA, the ATS is not as well-defined and, according to Sosa, must only permit claims as universally accepted as those existing under the federal common law in 1789.o The extraterritorial application of the TVPA is another area of concern shared with ATS litigation. The Senate Majority and Minority Reports to the TVPA sharply disagreed as to the scope of these claims.9 The majority embraced the extraterritorial component of the act, while the minority cautioned against such an expansive application of U.S. federal law. 92 The Minority Report, for example, questioned whether the Convention Against Torture-as understood and ratified by the United States- 85. CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW CASES AND MATERIALS 499, 552 (2006) [hereinafter BRADLEY & GOLDSMITH, FOREIGN RELATIONS] (citing S. REP. NO. 102-249, at 9 (1991)). 86. See, e.g., Ford v. Garcia, 289 F.3d 1283, 1288-89 (11th Cir. 2002); Hilao, 103 F.3d at 777; Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995); Paul v. Avril, 812 F. Supp. 207, 211-12 (S.D. Fla. 1993). 87. Hilao, 103 F.3d. at 777. 88. Id. 89. Id. 90. Sosa, 542 U.S. at 732. 91. See BRADLEY & GOLDSMITH, FOREIGN RELATIONS, supra note 85, at 521-22; (citing S. REP. No. 102-249 (1991)). 92. Id.

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 contemplated an extraterritorial extension of civil liability for torture claims as provided for in the TVPA. 93 President George H.W. Bush expressed similar misgivings when he signed the TVPA into law, stating, "U.S. courts may become embroiled in difficult and sensitive disputes in other countries, and possibly ill-founded or politically motivated suits, which have nothing to do with the United States and which offer little prospect of successful recovery." 94 Rather than expand available claims, the TVPA has several limitations in the scope of its application. The most obvious limit under the TVPA is that it only creates a cause of action for two specific offenses: torture and extrajudicial killing." The statute also requires an exhaustion of local remedies prior to utilizing U.S. courts,9 and there is a ten-year statute of limitations.' Similarly, just as these limits relate more to the nature of the subject matter within the TVPA, the requirement that it be by an "individual" suggests that imputing liability requires a certain amount of State action, although it is an open question as to how much. ' This holds true in spite of certain protections for States under the Foreign Sovereign Immunities Act (FSIA), as discussedbelow. B. Suits Against Foreign Officials The drafters of the ATS, mindful of the founders' concerns, likely sought a unified approach to complying with international law and avoiding conflicts with other nations. The question remains whether contemporary use of the ATS is consistent with that purpose.' Several issues arose, as suits against foreign officials became a burgeoning area of litigation, including: the extent to which U.S. municipal law was intended to govern the conduct of 93. Id. 94. See id. at 520 (citing Statement by President George Bush Upon Signing H.R. 2092, 28 Weekly Comp. Pres. Doc. 465, March 16, 1992, reprinted in 1992 U.S.C.C.A.N. 91). 95. TVPA, 2. 96. TVPA, 2(b). 97. TVPA, 2(c). 98. TVPA, 2(a). See Engle, supra note 11, at 20 (discussing when state action is required). 99. Sosa, 542 U.S. at 750 (providing "[t]he notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign's treatment of its own citizens within its own territory is a 20th century invention of internationalist law professors and human-rights advocates." (Scalia, J., concurring in part and concurring in the judgment)).

20091 Who Watches the Watchmen? other States; the impact these suits have on U.S. foreign relations; and whether this form of ATS litigation interferes with the prerogatives of the executive branch. Historically, the integrity of a sovereign was sacrosanct, and courts were reluctant to become involved in how States treat their citizens. According to a Second Circuit Court case in 1976 dealing with reparations to a Jewish survivor of Nazi Germany whose property was confiscated by the State, "[t]here is a general consensus... that [international law] deals primarily with the relationship among nations rather than among individuals." " Well before this case, however, the individual was becoming a subject in international law. ' 10 The development of international human rights and international criminal law began in earnest after World War II-most notably the prosecution of Nazi war criminals at the Nuremburg military tribunal and the adoption of the Universal Declaration of Human Rights- and continues today. 1 In the early twenty-first century, there can be no doubt that "how a state treats individual human beings... is a matter of international concern and a proper subject for regulation by international law." 03 The recognition of the individual as a subject of international law does not clarify the extent to which "our courts [should] sit in judgment of the conduct of foreign officials in their own countries with respect to their own citizens." ' " Largely because foreign relations fall within the purview of the political branches, there are certain limits on filing claims against States and foreign officials in U.S. courts. The Foreign Sovereign Immunities Act (FSIA), 15 for example, is the only way in the United States to gain jurisdiction over a foreign sovereign. 106 The general rule is that the foreign State is immune from liability for its sovereign acts unless there is a waiver of immunity, or if the State is engaged in commercial 100. Drefus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976). 101. John P. Humphrey, The International Law of Human Rights in the Middle Twentieth Century, in RICHARD B. LILLICH & HURST HANNUM, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND.PRACTICE 49 (4th ed. Aspen 2006). 102. Id. 103. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S. at vol. 1,144-45. 104. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 817 (1).C. Cir. 1984) (Bork, J., concurring). 105. 28 U.S.C. 1605; Engle, supra note 11, at 41-47. 106. Saudi Arabia v. Nelson, 507 U.S. 249, 355 (1993).

200 Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 activity. 0 A waiver of immunity may be implied, but this is strictly construed against the private plaintiff. '0' Commercial acts, referred to as acto jure gestionis in the international context, are actionable against the State if the act occurred, or has direct effects, in the United States. 109 The courts must exercise caution when interpreting a claim that pierces sovereign immunity, as the consequences could have diplomatic significance. Judge Ginsburg, in Princz v. Fed. Republic of Germany, wisely noted: We think that something more nearly express [than the FSIA implied waiver provision] is wanted before we impute to the Congress an intention that the federal courts assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong. Such an expansive reading of 1605 (a)(1) would likely place an enormous strain not only upon our courts but, more to the immediate point, upon our country's diplomatic relations with any number of foreign nations. In many if not most cases the outlaw regime would no longer even be in power and our Government could have normal relations with the government of the day-unless disrupted by our courts, that is. 110 If the FSIA does not stand in the way, ATS claims against foreign sovereigns could still have damaging effects. Not unlike the Sovereign State, foreign officials are afforded immunity in certain circumstances. Ministers and heads of state once enjoyed absolute immunity during their term in office. "' Once their term is complete, State officials enjoy qualified immunity, 2 and in some instances, no immunity at all if their 107. See generally Sampson v. Federal Republic of Germany & Claims Cong., 250 F.3d 1145 (7th Cir. 2001). 108. Id. at 1149, 1151 (where immunity was not implicitly waived, even though the acts in question related to jus cogens norms). 109. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989); Austl. Gov't Aircraft Factories v. Lynne, 743 F.2d 672 (9th Cir. 1984). See also Engle, supra note 11, at 45. 110. Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994). 111. Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136-37 (1812). 112. Arrest Warrant of 11 April 2000 (Congo v. BeIg.), 2002 I.CJ. 121 para. 61 (Feb. 14).

2009] Who Watches the Watchmen? actions relate to commercial activity or takings. 113 There is no immunity for acts committed that are illegal under the law of the State. 114 Following the Filartiga decision, some judges were concerned that the ATS was being interpreted to allow "our courts [to] sit in judgment of the conduct of foreign officials in their own countries with respect to their own citizens..".. In Sampson v. Fed. Republic of Germany, this notion was taken to its limit when the Seventh Circuit reasoned that in spite of alleged violations of jus cogens norms, 11 6 there is no obligation to remedy such violations. 117 Proponents of this type of ATS action claim that precluding a cause of action for human rights abuses goes against the doctrine that "every right, when withheld, must have a remedy."... As discussed below, actions under the ATS may not be the only remedy available to victims of human rights violations. The State Department, often partnering with the Department of Justice, advocates that the political solution to violating States must take precedence over a judicial solution. 119 The former legal advisor to the Secretary of State, John Bellinger, has expressly raised concerns over the extraterritorial application of U.S. laws as seen in ATS cases, and the undermining effect this has on the executive's diplomatic policies. 12 In ATS cases, the State Department often submits "statements of interest" to the Court asking for dismissal based on political considerations. 12 ' These 113. Sugarman v. Aeromexico, 626 F.2d 270, 273-74 (3d Cir. 1980) (citing Letter of Jack B. Tate, Acting Legal Adviser, Department of State, to Acting Attorney General Philip B. Perlman (May 19, 1932), reprinted in 26 Dep't of State Bull 984, 984-85 (1952)). 114. See generally Fildrtiga, 630 F.2d at 876. 115. Tel-Oren, 726 F.2d 774 at 813 (Judge Bork, concurring). 116. Jus cogens is a special set of customary international law from which no derogation is permissible. See Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (quoting the Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679); Comm. of U.S. Citizens Living in Nicar. v. Reagain, 859 F.2d 929, 940 (D.C. Cir. 1988); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S. 102 cmt. k. 117. Sampson, 250 F.3d 1145 at 1150. 118. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803) (citing WILLIAM BLACKSTONE 3 COMMENTARIES 109). 119. Bellinger, supra note 3. 120. Id. 121. Republic of Aus. v. Altmann, 541 U.S. 677 (2004) (discussing State Department statements of interest in the context of the Foreign Sovereign Immunities Act of 1976).

202 Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 statements draw sharp criticism from commentators and human rights advocates. 122 The courts, however, do not always rely on executive branch statements in ATS cases involving foreign sovereigns and officials. Utilizing the immunity theories, the political question doctrine, the act of state doctrine, and forum non conveniens, the courts have some tools available to preclude suits that are not properly before them. 123 While some argue that these tools of abstention or judicial deference allow for "vigilant doorkeeping," many frivolous claims are permitted to slip through, particularly in the corporate litigation context. C. Corporate Cases There is no better microcosm in which to view the relentless debate surrounding the application of the ATS than in cases involving corporate liability. 124 It has been noted that "[b]oth the scholarship provided by those in the field of human rights gazing at [multi-national enterprises] and the scholarship offered by those gazing back the other way from [corporations] to human rights is startling in its positivistic approach." 125 The most controversial theory of liability for corporations under the ATS is seen in the aiding and abetting cases. 126 Even though there is no indication in the language of the ATS itself of 122. Derek Baxter, Protecting the Power of the Judiciary: Why the Use of State Department "Statements of Interest" in Alien Tort Statute Litigation Runs Afoul of Separation of Powers Concerns, 37 RUTGERS L.J. 807 (2006); Sarah H. Cleveland, The Alien Tort Statute, Civil Society, and Corporate Responsibility, 56 RUTGERS L. REV. 971 (2004); Stephens, supra note 1. 123. See, e.g., Steinhardt, supra note 1, at n.153 (citing Ahmed v. Hoque, No. 01 Civ. 7224(DLC), 2002 WL 1964806 (S.D.N.Y. Aug. 23, 2002); Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1185-86 (C.D. Cal. 2002); United States v. Noriega, 746 F. Supp. 1506, 1539-40 (S.D. Fla. 1990); Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52, 64-67 (D.D.C. 2001). But see Hwang Geum Joo v. Japan 332 F.3d 679, 687 (D.C. Cir. 2003), dismissal reaffirmed, 413 F.3d 45 (2005), on remand, 542 U.S. 901 (2004), and Al Odah v. United States, 321 F.3d 1134, 1147 (D.C. Cir. 2003). 124. In re Nazi Era Cases Against German Defendants Litig., 129 F. Supp. 2d (D.N.J. 2001); Presbyterian Church of Sudan, 244 F. Supp. 2d at 289; Abdullahi v. Pfizer, Inc., No. 01 Civ. 8118, 2002 WL 31082956 (S.D.N.Y. Sept. 17, 2002); Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000); Doe v. Unocal Corp., (Unocal 1), 963 F. Supp. 880 (C.D. Cal. 1997); Doe v. Unocal Corp., (Unocal I1), 110 F. Supp. 2d 1294 (C.D. Cal. 2000). 125. Sally Wheeler, Corporations, Human Rights, and Social Inequality, in JUDGES, TRANSITION, AND HUMAN RIGHTS 426 (John Morison et al. eds., Oxford Univ. Press 2007). 126. See e.g., Doe I v. Unocal Corp., (Unocal Appeal), 395 F.3d 932, 947 (9th Cir. 2002).

20091 Who Watches the Watchmen? third party liability for violations of the law of nations, many argue that multi-national corporations must be held accountable for their alleged complicity in cases of human rights abuse. 127 To allow such claims, however, would greatly expand the "modest number" of claims under ATS suggested by Sosa. '" Moreover, innovative interpretations of ATS claims should be left to Congress. Under the ATS and the standards articulated in Sosa, aiding and abetting liability for corporations does not meet the "definite content and acceptance among civilized nations."' 29 In Sosa the court focused on the ATS standard-whether international law norms were universal enough to allow suits against different parties to include corporations. 1 ' Not only is it doubtful that the ATS extends to aiding and abetting liability, the sources evidencing such liability are problematic. For example, in the Apartheid Litigation case, the Court found the international sources to be inadequate for ATS purposes. 3 ' Furthermore, relying on non-binding decisions of international criminal tribunals as evidence of aiding and abetting liability in CIL is erroneous. The international criminal tribunals do not create binding sources of law and are concerned with criminal, rather than civil matters. " 2 The gap between what Sosa declined to consider enforceable ATS claims for arbitrary arrest and detention applies doubly to aiding and abetting liabilitythere are far fewer sources to confirm the status of aiding and abetting as a CIL claim. If this theory of liability holds, then a significant number of defendants in the United States will be subject to ATS jurisdictio n, in part, because corporations have more assets and are better targets of litigation. Far from being a noble tool combating human 127. See, e.g., David Weissbrodt & Muria Kruger, Norms on the Responsiblities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 97 AM. J. INT'L L. 901 (2003) [hereinafter Weissbrodt & Kruger]. 128. Sosa, 542 U.S. at 724. 129. Id. at 732. 130. Id. at 724-28. 131. Lucien J. Dhooge, A Modest Proposal to Amend the Alien Tort Statute to Provide Guidance to Transnational Corporations, 13 U.C. DAVIS J. INT'L L. & POL'Y 119, at 138, n.112 (2007). 132. Id. at 138 (citing In re S. African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004), rev'd sub nor Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, (2d Cir. 2007)). In contrast, see Steinhardt, supra note 1, at 2286 n.204 (citing international criminal tribunals as evidence that corporations may be held liable under an aiding and abetting theory).

Loy. L.A. Int'l & Comp. L. Rev. [Vol. 31:183 rights abuse, ATS litigation in this context is likely based more on politics and greed. "' Furthermore, it has been U.S. policy to object to the use of aiding and abetting liability to combat transnational crime. Similar to political branch pronouncements, the Supreme Court declined to imply aiding and abetting liability in civil cases under the securities fraud statute, arguing this expanded litigation would imply policy trade-offs best resolved by Congress. 135 When Congress acted, it did not allow private causes of action for aiding and abetting in this field. 136 In the context of ATS litigation, the lower courts are in conflict over whether aiding and abetting liability for human rights abuses is a common law claim consistent with Sosa. Some courts held that when Congress has not explicitly provided for aiding and abetting liability for private actors, it should not be implied. "' In other cases, the courts relied on the fact that significant human rights violations were at stake, and based their decisions, in part, on international common law. 38 Ultimately, the uncertainty in the ATS aiding and abetting jurisprudence must -be clarified by Congress. As one commentator notes, "Whether corporations should be liable for aiding and abetting violations of customary international law is an issue that will need to be addressed in the first instance by the political branches." 139 133. Bellinger, supra note 3, at 14-15. 134. See, e.g., UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME: DECLARATIONS & RESERVATIONS, at 7, available at http://treaties.un.org/doc/publication/mtdsg/volume ii/chapter xviii/xviii-12.en.pdf. 135. See, e.g., Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 181-82, 189-90 (1994) (concluding that civil liability for aiding and abetting was uncertain-requiring explicit application by Congress in a statute). 136. Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761, 769 (2008) ("The 10(b) implied private right of action [under the Securities Exchange Act of 1934, 15 U.S.C.S. 78j(b)] does not extend to aiders and abettors. The conduct of a secondary actor must satisfy each of the elements or preconditions for liability; and we consider whether the allegations here are sufficient to do so."). 137. Ruiz v. Martinez, EP-07-CV-078-PRM, 2007 U.S. Dist. LEXIS 49101 (W.D. Tex. May 17, 2007); Corrie v. Caterpillar, Inc. (Corrie 1), 403 F. Supp. 2d 1019 (W.D. Wash. 2005), affd, 503 F.3d 974, (9th Cir. 2007); Mujica v. Occidental Petroleum Corp., 381 F. Supp 2d 1164 (C.D. Cal. 2005); Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005); In re S. African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004). 138. See Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007); Bowoto v. Chevron Corp., 2006 U.S. Dist. LEXIS 63209; Presbyterian Church of Sudan, 374 F. Supp. 2d at 337-38 (allowing aiding and abetting liability); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 53 (E.D.N.Y 2005). 139. Bradley et al., Customary International Law, supra note 1, at 929.